Rodney Glen King v. United States District Court for the Central District of California, City of Los Angeles, Real Parties in Interest

16 F.3d 992 Rodney Glen KING, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent. City of Los Angeles, et al., Real Parties in Interest. No. 93-70994. United States Court of Appeals, Ninth Circuit. Feb. 2, 1994. Milton C. Grimes, Santa Ana Heights, California, for the petitioner. No appearance on behalf of respondent or real parties in interest. Before: REINHARDT, O'SCANNLAIN, and KLEINFELD, Circuit Judges. ORDER 1 Rodney King has filed a petition for a writ of mandamus seeking to have Judge John G. Davies disqualified from presiding at the trial of his civil damage action against the City of Los Angeles and the officers involved in his beating. We deny his petition. 2 The statutory provision underlying King's mandamus petition, 28 U.S.C. Sec. 455 (a), states that "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Recusal ordinarily is required "only if the bias or prejudice stems from an extrajudicial source," and not from a judge's conduct or rulings during the course of judicial proceedings. Pau v. Yosemite Park and Curry Co.,…

specially concurring:

While I concur fully in the court’s order, I believe that a fuller explanation of my reasons for doing so may be of some benefit.

Mandamus is an extraordinary writ. We do not grant relief simply because a district court commits an error, even one that would ultimately require a reversal on appeal. Rather, we apply a stringent five-factor test, a key part of which involves the question whether the error is “clear.” See Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977); In re Cement Antitrust Litigation, 688 F.2d 1297, 1305 (9th Cir.1982) (“Cement II”). While mandamus is sometimes an appropriate method of reviewing a judge’s refusal to recuse himself, in this ease the clear error factor is not only important but controlling. 1

In short, because the law with respect to recusal is insufficiently clear to permit us to say on the basis of the record before us that Judge Davies’ refusal to recuse himself is clearly erroneous, the standards for granting an extraordinary writ are not met. 2

I should note, however, that even though I cannot conclude that Judge Davies’ action constitutes clear error, the question is a close one. Its outcome…

ORDER

Rodney King has filed a petition for a writ of mandamus seeking to have Judge John G. Davies disqualified from presiding at the trial of his civil damage action against the City of Los Angeles and the officers involved in his beating. We deny his petition.

The statutory provision underlying King’s mandamus petition, 28 U.S.C. § 455 (a), states that “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his *993 impartiality might- reasonably be questioned.” Recusal ordinarily is required “only if the bias or prejudice stems from an extrajudicial source,” and not from a judge’s conduct or rulings during the course of judicial proceedings. Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir.1991).

Petitioner does not claim that an extrajudicial source has biased Judge Davies. Rather, his claim for relief is based on the pervasive bias exception, which is applicable when the petitioner shows that “a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party.” United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir.1988), cert. denied, 488 U.S. 1040…